Kentucky’s ‘Academic Standards Review and Revision Process’ gets under way

But, there are problems

The Kentucky Department of Education (KDE) recently held a press conference to announce the plan of attack related to the new Senate Bill 1’s requirements to review and revise the state’s academic education standards. There is going to be a lot of action in this area over the next few years for subjects like science and social studies, but the process of review for the state’s English language arts (ELA) and math standards has already started. The first step involves a public comment period that will run until September 15.

However, there may be some challenges with getting this public comment period right.

In fact, it appears things might be getting stacked to preserve the status quo as much as possible. That might not be in the best interests of our kids.

[Read more…]

Bluegrass Beacon: ‘Sorry’ no longer sufficient

BluegrassBeaconLogo“It’s easier to ask forgiveness than it is to get permission,” said the late Rear Admiral Grace Murray Hopper, who was born in New York City in 1906, joined the U.S. Navy during World War II, worked in computer programming following the war, resumed active service at the age of 60 and became the nation’s oldest serving naval officer before retiring in 1986.

Put another way, Hopper’s saying encourages: “If it’s a good idea, go ahead and do it. It’s much easier to apologize than it is to get permission.”

Most of us would find such an approach acceptable in the field of computer programming.

Had Hopper been as lethargic as most in that field during her day, she never would have led a team which created the world’s first computer programming language compiler.

However, it’s never “a good idea” to break the law, including laws designed to protect not only the rights but practical abilities of citizens to hold government agencies and officials accountable – even if the unlawful activity is accompanied by offenders’ contrition after the fact.

The Corbin Public Library Board was contrite following an attorney general’s ruling that the board violated the Kentucky Open Meetings Act by the way it conducted several of its meetings in 2015 and 2016.

It should have been, considering it failed to give notice of special board and committee meetings, chronicle and approve minutes of its meetings or observe the requirements for entering closed sessions all while conducting meetings in a locked building.

Yes, locked.

Oftentimes, such violations occur because boards or agencies know their decisions will be unpopular with the taxpaying public.

Library boards in some parts of the commonwealth have acted brashly in recent years, especially when it comes to squeezing taxpayers to fund elaborate, unneeded and expensive building projects.

But the Open Meetings Act – the law since 1974 – requires that if you’re going to attempt to raid taxpayers’ wallets, you can’t do it behind pulled blinds and locked doors.

What makes the Corbin library board’s remorse somewhat hollow is that members knew – or at least had numerous opportunities to get training in – the law yet chose to ignore it and those chances, adding weight to the assertion of transparency experts that Kentucky’s sunshine laws are light on penalties.

Even though attorneys general rulings in cases involving the open meetings and open records acts – the latter established in 1976 – carry the force of law, they’re missing a matching set of teeth.

Agencies can ignore it, say “sorry” when confronted with violations and suffer no real penalties, unless the whole matter ends up in a courtroom.

This does little to force government entities to seriously consider the law when deciding where, how and when to meet and what public business to consider, and doesn’t deter future shenanigans.

Some agencies, when called on their violations, don’t even bother with “sorry.”

When the Bluegrass Institute in 2015 prevailed in a legal challenge to the Kentucky Board of Education involving a committee tasked with finding an executive headhunting agency to lead the search for a new commissioner that wrongly conducted its meetings by telephone, not only were there no penalties involved, board members at that time attempted to downplay the attorney general’s ruling and the wrongness of their own actions.

They stubbornly refused to even consider implementing the institute’s proposed, reasonable and cost-free remedy: open meetings training for its members by a representative of the attorney general’s office.

Still, progress is being made.

Instructions were given to board members recently appointed to the KBE board on their first day in office regarding their responsibilities involving open meetings and records.

Once citizens become more aware of the importance of and engaged in defending, enforcing and strengthening the sunshine laws, “sorry” will no longer be sufficient.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

Bluegrass Beacon: Giving unaffordable pension benefits an economically fatal practice

BluegrassBeaconLogoLike Bernie Sanders refuses to acknowledge socialism’s devastating impact on previously prosperous Venezuela, supporters of Kentucky’s pension status quo – who seem largely illiterate about how defined-benefit systems work – refuse to concede that inadequate funding is not the primary cause of the commonwealth’s pension woes.

If it was, then why is the County Employees’ Retirement System (CERS) only around 60-percent funded despite making 100 percent of its actuarially required contributions through the years?

It’s because CERS hasn’t escaped suffering the same malady – awarding and enhancing benefits in ways neither taxpayers can afford nor the system was designed to support – now infecting all state retirement plans, and which cannot be ignored by any policymaker wanting to claim the mantle of serious pension reform.

CERS through the years not only raised the benefit factor – which, along with assumed rates of return on investments and contributions of employees and their government-employer agencies, determine the amount beneficiaries receive when they retire – but also has applied those raises to previous years.

While such benefit increases make recipients feel good about voting for the good-ole-boy politician who brought home that bacon, it’s a fatal tactic if Kentucky wants to continue providing its employees with defined-benefit plans.

For example, a plan member who entered the CERS on July 1, 1958, when it was established by the legislature, was awarded an initial benefit factor of 1.25 percent.

Far from being an arbitrary figure, that benefit factor, which is the percentage of final average salary beneficiaries will receive for that year of service, was based on certain conservative assumptions regarding what the system’s investments would earn and the employees and employers would contribute.

Flash forward to 1990, when the benefit factor for CERS members, which had risen through the years, reached 2.2 percent.

Such a benefit factor in and of itself would not have been a problem if it had been applied just for that year when investment returns had risen and the plan could cover it.

However, system bureaucrats applied that benefit retroactively, so that a beneficiary who entered the plan in 1958 and retired in 1990 was awarded a pension amount based on a 2.2 percent benefit factor for all those years, even though the amount received by beneficiaries is horizontal and not vertical in a defined-benefit plan.

Huge unfunded pension liabilities, anyone?

If, in fact, the state’s retirement systems would have followed the rules by awarding benefits for each year based on the assumptions and contributions for that year and not forced higher benefits retroactively, the commonwealth would have a surplus rather than a $40 billion (at least) unfunded liability.

I have no doubt about the happiness experienced by the beneficiary who retired in 1990 with a pension check that was 42-percent higher than the one the system was designed and funded to support.

But I seriously doubt taxpayers, who carry most of the risk but have the least say of all stakeholders, enjoy anywhere near the same level of bliss in knowing that the pension check received by that retiree is nearly 73 percent of his final average salary even though the system was designed and funded to support a 51-percent benefit.

While higher-than-expected returns on investments masked for years such incompetency or shenanigans – you pick – the consequences are catching up with CERS and the other public pension plans.

Separating CERS from the Kentucky Retirement Systems (KRS) – about which there has been much buzz – is functionally the right move. But doing so will not come close to abating our pension crisis.

In fact, before being allowed to leave the KRS, policymakers must demand that CERS also end this practice of retroactively awarding enhanced benefits.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

News Release: Bluegrass Institute Pension Reform Team responds to PFM pension report

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For Immediate Release: Tuesday, May 23, 2017                                                                                         

(FRANKFORT, Ky.) – The Bluegrass Institute Pension Reform Team (BIPRT) attended the Public Pension Oversight Board (PPOB) meeting on Monday to hear comments from PFM, the consultant evaluating the state’s retirement systems, regarding its latest report on the audit of Kentucky’s public benefits plans.

It is the belief of the BIPRT that the primary cause of Kentucky’s pension crisis is the benefit structure for employees and retirees. Specifically, retroactive benefit enhancements and unfunded benefits were granted to employees without the use of an actuarial analysis to determine the costs.

For this reason, we were disappointed to learn that PFM was asked to only analyze pension data back to 2005. This limited view of the data precluded PFM from incorporating the impact of large unfunded benefit enhancements granted to employees in the 1980s and 1990s, as we have well documented.

Sen. Jimmy Higdon, R- Lebanon, a member of the PPOB, correctly asked the actuarial representative from PFM about the work of the Bluegrass Institute and the absence of the impact of the benefit enhancements in their report. The response from PFM was that at least 20 years of data would have been needed to fully account for those costs.

If the commonwealth is going to enact real reform, we need to correctly identify the causes of our current dilemma. If we blame lack of portfolio performance, fees paid to external asset managers and lack of funding from Frankfort, we will be missing the true cause of the crisis.

We did find interesting the data presented by PFM comparing the benefits received by Kentucky teachers and public employees to comparable public and private sector employees in surrounding states. As one might expect, Kentucky employees receive, on average, much higher benefits.

The BIPRT is not against defined benefit retirement plans. If a defined benefit plan is to be implemented, however, certain rules must be followed. For decades, Kentucky broke these rules repeatedly leading to our crises today.

Download this detailed list of recommendations offered by the Bluegrass Institute to address this crisis and return our state to economic health and vitality.

For more information, please contact the  Bluegrass Institute Pension Reform Team at BIPRTKentucky@gmail.com or Jim Waters at jwaters@freedomkentucky.com, 859.444.5630 ext. 102 (office) or 270.320.4376 (cell).

 

Join us: Legislative Breakfast and Liberty Awards @ Kenneland on May 25; Liberty Award winners announced

LibertyAwardsBanner-300x110Plan to join us for the Bluegrass Institute 2017 Legislative Breakfast & Liberty Awards this Thursday, May 25, from 7:30 am to 9 am.

There’s still time to register and find out more information about this event here.

This event will be held in the beautiful Keeneland Room @ Keeneland Racecourse, 4201 Versailles Road, Lexington, KY 40510. We will experience magnificent views of the racetrack and Kentucky’s Bluegrass countryside during morning training.

Registration and a buffet breakfast will be available beginning at 7:30 am with the program highlighting the 2017 regular session of the Kentucky General Assembly and presentation of Liberty Awards from 8 am – 9 am.

Lowell D. ReeseAmong this year’s Liberty Award winners will be the late Lowell Reese for his legacy and commitment to making government more open, accountable and transparent to all citizen-taxpayers and his dedicated efforts to genuinely reform Kentucky’s public pension crisisThe efforts of our pension reform team are building on the foundation Lowell so aptly laid. Lowell’s wife, Carol Reese, will be joining us next week.

Other award winners this year include Sen. Christian McDaniel for his leadership during the past several years resulting in making the commonwealth’s legislative pension system subject to Kentucky’s open records laws and Amye Bensenhaver, a foremost expert on Kentucky’s sunshine laws who recently became director of the Bluegrass Institute Center for Open Government.

The purpose of the nonpartisan Liberty Awards is to recognize policymakers who have promoted policies by taking principled and often courageous stands in behalf of free markets, individual liberty and limited – and transparent – government.

These awards identify policy, rather than political, accomplishments, and are given to leaders in both political parties who demonstrated leadership during the past year to make Kentucky freer, more prosperous and more responsive to the needs of citizens.

Contact Kelly Smith @ 859.576.1920.

Bluegrass Beacon: Detractors wrong about right-to-work

BluegrassBeaconLogoOriginators of the “Right to Work: Wrong for Kentucky” sign that has adorned a billboard alongside Louisville’s Watterson Expressway will have a harder time making that case now than even just a few months ago.

Since lawmakers passed right-to-work on the first Saturday of 2017 – itself a historic event – history being made is becoming a frequent accomplishment when it comes to announcements of new investment in the Bluegrass State.

First, before right-to-work had even been on the books for a month, Amazon shook the entire retail industry’s center of gravity by deciding to place its $1.5 billion worldwide cargo hub at the Cincinnati/Northern Kentucky International Airport.

The project will bring 3,000 jobs to the commonwealth and is the largest single business deal ever executed in Northern Kentucky, a distinction previously held by Delta Air Lines’ investment in 1993, which would represent $630 million in today’s dollars.

Then, Toyota announced less than two weeks later that it would make its largest-ever investment at the Georgetown plant – where 8,200 employees already thrive – by devoting more than $1.3 billion toward replacing and repairing equipment and upgrading technology.

While no new jobs were included in Toyota’s announcement, this upgrade is taking place at a plant where, according to the Kentucky Economic Development Authority as reported by WDRB News, workers make more than $45 an hour, which adds up to more than $93,000 annually – and that’s without including any overtime pay.

It’s all part of Toyota’s plan to spend $10 billion at its American plants by 2022.

Can anyone say: “Make Kentucky’s economy great again?”

But the commonwealth’s brand new right-to-work law also is making history even in eastern Kentucky.

Braidy Industries CEO Craig Bouchard announced toward the end of April that his company would build a $1.3 billion aluminum mill in Greenup County’s South Shore that will employ 550 employees and pay them $70,000 annually.

Also, the first phase of the project, which will begin in early 2018, will result in the hiring of 1,000 construction workers.

How much does right-to-work have to do with this historic announcement?

“If Kentucky was not a right-to-work state, you wouldn’t have gotten on the list because it’s so important to us,” Bouchard said at an event announcing the new project, which will produce more than 300,000 tons of aluminum each year to serve automakers and the aerospace industry, which is a top exporter in the state.

The “list” included 24 other potential locations.

Still, despite Bouchard’s clear statement about how essential a right-to-work policy was in terms of deciding where to build this mill, which Gov. Matt Bevin said could wind up being “as significant as any economic deal ever made in the history of Kentucky,” ideological naysayers still try to deny its impact on the decision-making process.

In the end, House Minority Floor Leader Rocky Adkins, D-Sandy Hook, was forced to admit the Braidy announcement means a “tremendous” addition to Kentucky’s economy, even though he led the charge against right-to-work during the debate in the legislature on that cold, snowy first Saturday in January by fuming: “I will never cast a vote that I know will drive down the wages of the hard-working middle class.”

A $70,000 paycheck in northeast Kentucky doesn’t exactly sound like driving down wages to me.

Such potential should also provide some optimism for many across the political spectrum who wondered if there was any hope for replacing coal jobs – the only good positions found in many areas of the region for decades – lost to market forces and the Obama administration’s stifling regulations.

Manufacturers in the four months since Kentucky became a right-to-work state have made announcements historic to the northern, central and eastern part of the commonwealth that will result in more than $4 billion and create 3,550 direct jobs.

And that’s only three of the many more smaller announcements made just since right-to-work came to Kentucky.

Few policies were ever more right for Kentucky.

It’s time for that sign to come down.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

Bluegrass Beacon – Government broadband: Money pit or silver bullet?

BluegrassBeaconLogoThe City of Pikeville recently raised its restaurant tax by a full percentage point just to finance a government-owned broadband network.

If history is any guide – and it usually is – this tax increase won’t be the only one city officials will claim they need to keep a municipal broadband network functioning.

While local politicians keep trying to find ways to add to taxpayers’ tabs, they will never be able to raise taxes fast – or high – enough to pay for such pork-laden boondoggles.

Just ask taxpayers in the 11 cities in Utah which in 2002 got together to build a $500 million regional broadband system called (no joke) UTOPIA.

Here we are, 15 years later and the network still isn’t complete, has barely a quarter of the subscribers it promised to attract and runs a multimillion-dollar deficit annually.

UTOPIA cities trying to make government-owned broadband work have turned more tricks than Houdini attempting an underwater escape, including raising property taxes and increasing utility fees to cover yearly shortfalls.

It hasn’t worked.

Now, local officials are stuck with the failing network after unsuccessful attempts to sell it.

Other cities, including Marietta, Georgia, Provo, Utah, and Groton, Connecticut, managed to shimmy their way out of failing municipal-network deals but lost millions of dollars in the process.

Still, getting out was a wise move – even at a loss.

If you remember the 1986 movie “The Money Pit,” you know what I’m talking about when I claim that government-owned broadband networks would make Tom Hanks and Shelley Long cry, too.

Revenues are rarely enough to cover these projects’ operating costs; fiber networks require constant upkeep and upgrades to stay on the cutting edge and attractive to subscribers.

Like Pikeville, the cities of Marietta, Provo and Groton counted on municipal broadband to bring new jobs and investment to town.

However, studies from New York Law School’s Advanced Communications Law and Policy Institute, George Mason University’s Mercatus Center and Phoenix Center for Advanced Legal and Economic Public Policy Studies all conclude: at best, these networks are a wash economically.

Not only is there no conclusive evidence that such municipal networks reduce unemployment rates or attract new business, but they actually deter investment by telecommunications companies forced to compete on such an unlevel – and thus unfair – playing field.

No firm in its right mind wants to compete with a municipal network with government benefactors standing by to raise taxes to bail it out during tough times, which is what Pikeville residents will be asked to do when its project can’t make ends meet.

The bills will keep increasing; a higher restaurant tax now, increased utility fees – like what was proposed to pay for Utah’s UTOPIA – later.

Advocates who want this municipal system cite Chattanooga, Tennessee’s government network as an example Pikeville should emulate.

Experts from the New York law school mentioned above took an in-depth look at Chattanooga’s network and admitted the system is making some money but only because of a unique set of factors that cities like Pikeville can’t even come close to replicating.

Chief among them is that the federal government supplied more than $100 million from the 2009 stimulus scheme to finance that city’s system, which was more than twice the city’s entire fiscal 2016 budget.

And $100 million was just the federal government’s share of the network’s $390 million price tag.

There’s no question Pikeville and all of eastern Kentucky struggle to attract new businesses and investment.

But success in these endeavors will require innovative leadership and approaches – not shiny new toys.

There are no easy answers with this exception: municipal broadband isn’t a silver bullet.

Jim Waters is president of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

 

Holding public records hostage

COG LOGOPublic agencies regularly complain about the three working days’ statutory deadline for responding to an open records request.

“Responding,” in this context, means deciding whether to honor or deny a request, after locating and reviewing the records identified in that request, and making the records accessible to the requester after three days has elapsed. It does not mean acknowledging receipt of a request on the third day but delaying final action and disclosure of the records indefinitely. Lawmakers undoubtedly adopted a short turnaround for agency response in recognition of the fact that “the value of information is partly a function of time.”

While employed as an instructor at UK’s School of Journalism, former hostage Terry Anderson recounted his five-year struggle with federal agencies to secure access to records relating to the government’s efforts to secure his release from his Hezbollah kidnappers during his nearly seven-year captivity.

He described his bemusement when agency officials suggested that he obtain signed releases from his former captors to expedite disclosure of responsive records and protect his captors’ privacy. He shared his disappointment and frustration when the records ultimately released to him largely consisted of newspaper articles and photos.

In the case recognizing that “the value of information is partly a function of time,” the U.S. Department of Justice postponed access to requested records for eight years. The federal court decided that the record on appeal did not support the eight-year delay.

The court acknowledged that the Freedom of Information Act, which governs access to records of federal agencies, “doubtless poses practical difficulties for federal agencies,” but refused to “repeal it by a construction that vitiates any practical utility it may have.“  In other words, the court was unwilling to erode the principle of timely access to public records as an accommodation to the agency’s burden, real or imagined, and suggested that the agency present its concerns to Congress.

In 17-ORD-082, issued recently,  Kentucky Attorney General’s office admonished Louisville Metro Government for failing to explain the reasons for a one-and-a-half month delay in producing  records responsive to a series of broadly worded requests relating to an EEOC complaint of sexual harassment, hostile work environment, and retaliation filed by an employee of the Louisville Zoo.

Nevertheless, the attorney general found that the record on appeal supported the delay in producing the records beyond the three-day deadline as Louisville presented proof that just one of the multiple requests implicated more than 23,000 records.

Delays in production of public records by state and local agencies in Kentucky may pale in comparison to delays at the federal level, but are no less offensive to the principle that “the value of information is partly a function of time.” Perhaps the solution to this and other problems lies in statutory revision of the 40-year-old law that is faithful to its strongly worded statements of legislative policy.

Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government.  She is one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, having written nearly 2,000 legal opinions forcing government entities to operate in the open during a 25-year career as an assistant attorney general in the Kentucky Attorney General’s Office. 

Beshear intervenes in court actions involving sexual misconduct investigations to protect OAG’s ability to resolve open records disputes

COG LOGOAttorney General Andy Beshear has intervened in open records appeals pending in the Fayette and Franklin Circuit courts, and is seeking to obtain permission to intervene in a similar appeal in Warren Circuit Court in cases involving his office (OAG) having access to information regarding Title IX sexual misconduct investigations of university employees.

His goal? To ensure that public agencies don’t deny his office critical information in deciding open records disputes by defying his staff’s requests for additional documentation from the agencies to substantiate their positions, which the law requires.

There are few, if any other, instances in which an attorney general has intervened in a circuit court appeal of his own office’s decision in an open records dispute, and the stakes couldn’t be higher.

KRS 61.880(2)(c) assigns the burden of proof in an open records dispute to the public agency and unambiguously states that in rendering a decision in such a dispute, the attorney general “may request additional documentation from the agency for substantiation. . . .[and] a copy of the records involved but they shall not be disclosed.”

Agencies that defy this provision have been sternly rebuked by the courts.

In Cabinet for Health and Family Services v. Todd County Standard, Inc., the court admonished the Cabinet’s “blatant[] refus[al] to respond to the Attorney General’s specific questions, . . .intentionally  frustrat[ing] the Attorney General’s statutory review under KRS 61.880.” That court concluded that an agency “cannot benefit from intentionally frustrating the Attorney General’s review of an open records request.”

The Todd County Standard opinion was issued in December 2015. Nevertheless, the University of Kentucky refused in 2016 to comply with the OAG’s requests for additional documentation as well as a copy of the disputed records in an appeal involving its own student newspaper, The Kentucky Kernel.

The OAG did not enjoy the same luxury of ignoring his statutory duties that UK apparently believed it enjoyed relative to KRS 61.880(2), and in 16-ORD-161  the OAG determined that UK failed to meet its burden of proof in denying The Kernel’s request. UK appealed that decision to Fayette Circuit Court. Other universities across the state followed suit in companion appeals involving their institutions – including Western Kentucky University’s appeal to the Warren Circuit Court – emulating the flagship university’s defiance of the unambiguous statutory requirement and “intentionally frustrat[ing] the Attorney General’s review under KRS 61.880.”

Without this essential tool, the attorney general cannot conduct a meaningful review of the issues presented to him for resolution, which are part of the statutory duties of his office. He becomes a mere “rubber stamp” for agencies disinclined to expose their conduct to the light of public scrutiny.

UK, KSU and WKU’s defiance undermines a critical function reserved to the OAG to reduce the number of open records appeals clogging the courts and to encourage expeditious dispute resolution at no cost to citizens.

The universities are wrong, and Andy Beshear is right.

–Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government. She is one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, having written nearly 2,000 legal opinions forcing government entities to operate in the open during a nearly 25-year career as an assistant attorney general in the Kentucky Attorney General’s Office. 

Seven Myths About Education

Bluegrass scholar Prof. Gary Houchens has his own, great blog, and one of his new entries is a really though-provoking winner. In “Seven Myths About Education,” Houchens discusses a book with the same title that takes a lot of what we hear are “proven facts” about education to the wood shed.

Check out what the book and Houchens believe about these seven myths:

• facts prevent understanding
• teacher-led instruction is passive
• the twenty-first century fundamentally changes everything
• you can always just look it up
• we should teach transferable skills
• projects and activities are the best ways to learn
• teaching knowledge is indoctrination

If you are a parent, ask yourself if any of these myths are driving what happens in your child’s classroom. Your child’s future could depend on it.